Bombay High Court
Shree Arun Dev Upadhyaya vs Integrated Sales Services Ltd Thr ... on 16 February, 2018
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 6066 of 2012
AND
Writ Petition No. 4682 of 2012
A. Writ Petition No. 6066 of 2012 :
Gemini Bay Transcription Private Ltd.,
a Company duly incorporated
under the Companies Act, 1956,
having its registered office at
214/A, Opp : Fidvi Complex,
near Residency School,
Residency Road, Sadar,
Nagpur-440 001,
through its Director - Shri Rattan
Pathak. ..... Petitioner
Versus
1. Integrated Sales Service Ltd.
a Company based in Hong Kong,
having its office at 16/F
Jonsim Place,
228 Queen's Road, East,
Wanchai, Hong Kong,
through its Power of Attorney
Holder Mr. M. Eharat son of
B. K. Muralidhar,
aged about 23 years,
resident of 428, 3rd cross AGS
layout, Subramanyapura,
Post Bangalore-560 061.
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2. Shri Arun Dev Upadhyaya,
aged - major,
occupation - business,
resident of behind Saraf Chambers,
Sadar, Nagpur-1.
3. DMC Management Consultants Ltd.
having its registered under the
Companies Act, 1956,
having its Office at C-2/2098,
Vasant Kunj, New Delhi-110 070.
4. The District Judge-10 &
Additional Sessions Judge,
Nagpur, Suyog Building,
Civil Lines, Nagpur.
5. The District & Sessions Judge,
Nagpur, Nyaya Mandir,
Civil Lines, Nagpur. ..... Respondents
*****
Mr. Shyam Dewani, Adv., for the petitioner.
Mr. D. V. Chauhan, Adv., for respondent no.1.
Mr. A. G. Gharote, Adv., for respondent no.2.
Mr. Wilson Mathew, Adv., for respondent no.3.
Mr. A. M. Deshpande, Asstt. Govt. Pleader for respondent Nos. 4
and 5.
*****
B. Writ Petition No. 4682 of 2012 :
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Arun Dev Upadhyaya,
major,
occupation - business,
resident of behind Saraf Chambers,
Sadar, Nagpur-1.
....Original Judgment Debtor No.2. ..... Petitioner
Versus
1. Integrated Sales Services Ltd.
a Company registered under the
Laws of Hong Kong,
having its registered Office at
16/F, Jonsim Place, 228,
Queens Road, East,
Wanchai, Hong Kong,
through its Power of Attorney
Holder Mr. M. Bharat son of B.K.
Muralidhara, aged 23 years,
resident of 428, 3rd Cross,
AGS Layout, Subramanyapura,
Post Bangalore-560 061.
....Original Decree-holder.
2. DMC Management Consultants Ltd.
a Company duly registered under
the Companies Act, 1956, having
its office at behind Saraf
Chambers, Sadar, Nagpur-440 001,
Maharashtra, India.
....Original Judgment Debtor No.1.
3. Gemini Bay Transcription Pvt. Ltd.
a Company duly registered under
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the provisions of Companies
Act, 1956, having its Office at
241/A, Opp : Fidvi Chambers,
Residency Road, Sadar,
Nagpur.
....Original Judgment Debtor No.3.
4. The District Judge-10 & Additional
Sessions Judge,
Nagpur.
5. The District & Sessions Judge,
Nyaya Mandir,
Civil Lines, Nagpur. ..... Respondents
*****
Mr. A. G. Gharote, Adv., for the petitioner.
Mr. D. V. Chauhan, Adv., for respondent no.1.
Mr. Wilson Mathew, Adv., for respondent no.2.
Mr. Shyam Dewani, Adv., for respondent no.3.
Mr. A. M. Deshpande, Asstt. Govt. Pleader for respondent Nos. 4
and 5.
Mr. R. L. Khapre, Adv. assisting the Court.
*****
CORAM : R. K. DESHPANDE,
A.S. CHANDURKAR,
AND
M.G. GIRATKAR, JJ.
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Date on which arguments
were heard : 17th January, 2018
Date on which judgment
is pronounced : 16th February, 2018
J U D G M E N T [Per A. S. Chandurkar, J.] :
01. The facts leading to this reference to the Full Bench are that
the respondent no.1 in Writ Petition Nos. 6066 of 2012 and 4682 of
2012 being the decree holder initiated execution proceedings under
Section 48 of the Arbitration & Conciliation Act, 1996 [for sake of
brevity, "the Act of 1996"] for enforcement of the foreign Award dated
29th March, 2001. The learned Principal District Judge assigned this
matter to District Judge-10 in exercise of powers under Section 16 of
the Maharashtra Civil Courts Act, 1869 [for sake of brevity, "the Act of
1869"]. The Petitioners-judgment debtors took the stand that in view
of provisions of Section 2 (1) (e) of the Act of 1996, the proceedings
could not have been so transferred and the execution proceedings
ought to have been prosecuted in the Court of Principal District Judge
himself. The objection in that regard was rejected on 21st August,
2012 which is the subject-matter of challenge in both the Writ
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Petitions. When the Writ Petitions were pending before the learned
Single Judge, they were amended for challenging Office Order dated
17th November, 2011 whereby the Principal District & Sessions Judge,
Nagpur, issued directions in exercise of powers under Sections 38 and
39 of the Code of Civil Procedure, 1908 [for sake of brevity, "the
Code"] and allocated execution applications filed for executing Awards
passed under the provisions of the Act 1996 to various District Judges
mentioned therein. The aforesaid Writ Petitions were, therefore, placed
before the Division Bench.
02. While considering the challenge to the aforesaid Office Order
dated 17th November, 2011, the Division Bench referred to the
judgment of the Full Bench in Fountain Head Developers Vs. Maria
Arcangela Sequeria through legal heirs [ 2007 (3) Mh. L.J. 744
(FB) ] and observed that the District Judge [now the Principal District
Judge] was found to be the Principal Civil Court of original jurisdiction
by the Full Bench. The Division Bench then considered the judgment in
Akola Janta Commercial Co-operative Bank Ltd. Vs. Raju
Natthuji Badhe [2001 (2) Mh.L.J. 427] rendered by another Division
Bench. It noted that the Division Bench in Akola Janta Commercial Co-
operative Bank Ltd. [supra] had held that the Award has to be treated
as a decree passed by the District Judge which may be executed either
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by the District Judge himself or by any Court to which it is sent by such
District Judge. It was further observed that when the judgment of the
Full Bench in Fountain Head Developers [supra] was read in the
backdrop of the aforesaid observations, the words "including a
subordinate Court of competent jurisdiction" militate with the concept
of principal Civil Court of original jurisdiction as expounded therein. It
was further observed that the provisions of Section 39 (1) of the Code
cannot be construed independently of Section 2 (1) (e) of the Act of
1996 and a Court subordinate to the Court of District Judge [the Court
of Principal District Judge] cannot be recognized as Court of competent
jurisdiction for the purposes of enforcement of Awards under the Act of
1996. On that premise, the Division Bench in Gemini Bay
Transcription Pvt. Ltd. Vs. Integrated Sales Service Ltd. &
others [Writ Petition No. 6606 of 2012] found itself not in a position to
concur with the judgment of the Division Bench in Akola Janta
Commercial Co-operative Bank Ltd. [supra]. In paragraph 14 of its
order dated 01st March, 2013, it observed as under:-
"The issue is whether Office Order No. A-1 (3)/43/B/2011
dated 17th November, 2011 by the Principal District
Judge, Nagpur transferring the execution of award under
the Arbitration and Conciliation Act, 1996 to the Courts
of Additional District Judges (District Judge-3, District
Judge-4 etc.) is in consonance with the provisions of the
Arbitration and Conciliation Act, 1996."
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The papers were accordingly placed before the Hon'ble the Chief
Justice who has been pleased to constitute this Bench for answering
the Reference.
03. We have accordingly re-framed the question to be
considered and answered as under :
"Whether an Award made under Part-I of the Arbitration
and Conciliation Act, 1996 has to be executed only by
the Court as defined by Section 2 (1) (e) (i), or, whether
it can also be executed by the Court to which it is sent
for execution under Section 38 of the Code of Civil
Procedure, 1908?"
04. At the outset, a brief reference to the judgments leading to
the Reference is required to be made.
In Rajashree Shrinivas Joshi Vs. Omega Information
Systems, Sangli [2009 (3) Mh.L.J. 303], proceedings for executing an
Award were filed in the Court of Joint Civil Judge [Senior Division]. An
objection was raised by the judgment debtors in those proceedings to
the jurisdiction of the Joint Civil Judge [Senior Division], but the same
was rejected. It was held by the executing Court that the Court of Civil
Judge [Senior Division] was competent to proceed with the execution
proceedings of the Award. The learned Single Judge observed that the
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Award had become final and it was, therefore, an executable decree in
accordance with the provisions of the Code. The learned Single Judge
referred to the judgment of the Full Bench in Fountain Head
Developers [supra] and observed that the District Court was the Court
for the purposes of executing the Award passed under the Act and it
was the Principal Civil Court of original jurisdiction in a district. The
impugned orders passed by the executing Court were quashed and the
matter was remanded for re-consideration.
The aforesaid decision indicates that the order passed by
the executing Court that the Court of Civil Judge [Senior Division] was
competent to proceed with the execution proceedings was set aside
and the matter was remanded for fresh consideration.
05. In Fountain Head Developers [supra], the Full Bench of this
Court considered the question as to whether it would be the Civil Judge
[Senior Division] or the District Court that should be construed as being
the Principal Court of original jurisdiction for the purpose of a petition
under Section 34 of the Act. It was held that the definition of the
expression "Court" as per provisions of Section 2 (1) (e) of the Act of
1996 was inclusive in nature and it was the Court of "District Judge" in
a district which was the Court of principal civil jurisdiction. The
Reference was answered by holding that the Principal Civil Court of
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original jurisdiction in a district for the purposes of a petition under
Section 34 of the said Act is the District Court and does not include any
Court inferior to the District Court.
The Full Bench while answering the aforesaid Reference was
concerned only with a petition filed under Section 34 of the said Act.
Section 34 specifically refers to the recourse that could be taken for
setting aside an arbitral Award by approaching the Court.
06. In Akola Janta Commercial Co-operative Bank Ltd. [supra],
the Division Bench was considering the challenge raised to the order
passed by the learned Single Judge. Before the learned Single Judge,
an order passed by the Court of Civil Judge [Senior Division] recalling
the warrant issued in execution proceedings was under challenge. The
executing Court had recalled the warrant in view of the law laid down
in Rajashree Shrinivas Joshi [supra] where it was held that the only
Court entitled to execute an Award under the Act is the District Court.
The learned Single Judge upheld that order passed by the executing
Court. The Division Bench turned down the challenge and concurred
with the view expressed by the learned Judge in Rajashree Shriniwas
Joshi [supra]. The Division Bench thereafter considered the manner of
enforcement of an Award as a Decree of the Court. After referring to
the provisions of Sections 37 to 39 of the Code, S. A. Bobde, J. [as His
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Lordship then was] held that in view of the aforesaid provisions of the
Code, an Award must be treated as a Decree passed by the District
Judge and it could be executed either by the District Judge himself or
by any Court to which it may be sent by such District Judge for
execution in terms of Section 38 of the Code. It was observed that a
decree holder must apply for execution of an Award to the Court of
District Judge who may either execute the Award as a decree himself
or send it for execution to another Court including a subordinate Court
of competent jurisdiction. The Division Bench thereafter issued
directions that all applications for execution of Awards made to the
Civil Judges [Senior Division] be placed before the District Judge who
could either execute the Awards as decrees himself or send them for
execution by way of transfer to subordinate Courts under Section 38
read with Section 39 (2) of the Code.
From the aforesaid decision, it is clear that the Division
Bench considered the manner in which an Award could be executed as
a decree as contemplated by Section 36 of the Act of 1996. Though
the application for execution of an Award was required to be made
before the District Judge, the Award as a decree could be executed
either by the District Judge himself or by any Court to which it may be
sent for execution in the light of the provisions of Sections 38 and 39 of
the Code.
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Submissions :
07. It is in this aforesaid backdrop that we have heard the
learned counsel for the parties. Shri A. G. Gharote, learned counsel for
the petitioner in Writ Petition No. 4682 of 2012 submitted that as per
the provisions of Section 2 (1) (e) (I) of the Act of 1996, it is only the
Principal Civil Court of original jurisdiction in a district which is
competent even to enforce an award as a decree. Except that Court,
no other Civil Court inferior to it can do so. The expression "Court" as
defined is intended to cover all proceedings and applications under the
Act of 1996 and the same would also include proceedings for
enforcement of the award as a decree. Referring to the provisions of
Section 36 (1) and Section 42 of the Act of 1996, it was urged that it
was only principal Civil Court that could execute the award, especially
when under Section 42 it was clarified that said Court alone would
have jurisdiction over the arbitral proceedings as well as all
subsequent applications arising out of that agreement. Execution of
the award being one of the stages as contemplated, no other Court
could be assigned the task of enforcement of the award. He then
referred to the scheme of the Act of 1869 to urge that an Additional
District Judge as contemplated by provisions of Section 14 of the Act
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of 1869 was subordinate to the District Judge meaning the Principal
District Judge. The Additional District Judge was conferred with
jurisdiction to adjudicate original proceedings only on account of such
assignment under Section 16 and the latter part of Section 16 clearly
indicates that an appeal from a decree or order of the Additional
District Judge lies before the District Judge or the High Court as per
valuation of the subject-matter. Merely because certain original
proceedings are referred to him under Section 16, the same would not
make the Additional District Judge the Principal Court of civil
jurisdiction. A Notification under Section 19 of the Act of 1869 was
required to be issued by the State Government so as to exclude the
jurisdiction of the District Judge to that extent. In support of his
submissions, the learned counsel referred to the judgment of the Full
Bench in Fountain Head Developers [supra] and emphasized the
aspect of Courts inferior to the Court of District Judge. He also referred
to the judgment of the Hon'ble Supreme Court in Executive
Engineer, Road Development Division No. III, Panvel & another
Vs. Atlanta Ltd. [AIR 2014 SC 1093] to urge that it was only the
superior most Court exercising original civil jurisdiction that had been
chosen to adjudicate disputes arising out of arbitration agreements,
aribtral proceedings and arbitral awards. Reference was also made to
the decision in State of West Bengal & others Vs. Associated
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Contractors [ (2015) 1 SCC 32] in that regard. He also referred to the
decisions in [1] M/s. I. T. I. Ltd. Allahabad Vs. District Judge,
Allahabad & other [AIR 1998 Allahabad 313], [2] Northern
Coalfields Ltd., Singrauli, (M.P.) through Chairman-cum-M.D.
Vs. Aluminium Industries Ltd. Kerala [ (2013) 5 Allahabad Law
Journal 150], [3] I.C.D.S. Ltd. Vs. Mangala Builders Pvt. Ltd. &
others [AIR 2001 Karnataka 364], [4] M/s. S. M. Suparies Vs.
Karnataka Bank Ltd. [AIR 2011 Karnataka 38] as well as judgment in
Sanjay Suryakant Mhaske & others Vs. Zilla Parishad, Jalna;
decided on 11th June, 2015 by learned Single Judge at the Aurangabad
Bench. He brought to the notice of the Court the subsequent judgment
of learned Single Judge in Union of India Vs. Aruunkumar
Deedwania [2017 (4) Mh.L.J. 130].
It was, thus, submitted that in the light of aforesaid, it was
not permissible for the Principal District Judge to assign matters with
regard to execution of an award as a decree to other Additional District
Judges/District Judges and the execution was required to be carried out
by the the Principal District Judge.
08. Shri S. Dewani, learned counsel for the petitioner in Writ
Petition No. 6066 of 2012, supplemented the aforesaid contentions and
referred to the provisions of the Commercial Courts, Commercial
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Division & Commercial Appellate Division of High Courts Act, 2015 [for
sake of brevity, "the Act of 2015"]. According to him, in view of the
enforcement of the Act of 2015 as well as the provisions of Section 2
(1) (e) of the Act of 1996, it was only the District Judge who was
competent to entertain applications with regard to enforcement of an
award. He referred to the Notification dated 30th June, 2016 that was
issued in exercise of powers conferred by Section 3 (1) and (3) of the
Act of 2015, by which the District Judge-1 posted at each district was
appointed as the Judge of the Commercial Court constituted in that
district.
09. Shri D.V. Chauhan, learned counsel appearing for the
respondent no.1 in both the Writ Petitions, submitted that when
provisions of Section 2 (1) (e) of the Act of 1996 are read along with
provisions of Sections 38 and 39 of the Code, it was clear that District
Judges other than the Principal District Judge were included in the
definition of the expression "Court" and, therefore, they were also
competent to entertain proceedings for execution of an award as a
decree. He referred to the judgment of the Full Bench of the Calcutta
High Court in West Bengal Housing Infrastructure Development
Corporation Vs. M/s. Impression [AIR 2016 Calcutta 236] to urge
that Additional District Judges were not statutorily incompetent or
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inferior to the Principal District Judge, but they exercised equal judicial
powers. It was concluded therein that the Additional District Judge was
also the Principal Civil Court in the district. He also referred to the
judgment of the Hon'ble Supreme Court in Paramjeet Singh Patheja
Vs. ICDS Ltd. [(2006) 13 SCC 322] in that regard.
10. Shri R. L. Khapre, learned counsel, after seeking permission
of the Court to address it on the aforesaid question, submitted that the
term "Court" as defined by Section 2 (1) (e) of the Act of 1996 did not
refer to the District Judge as "persona designata". The object of the
Act of 1996 being one to reduce litigation, the provisions ought to be
interpreted in a manner that would facilitate achieving that object.
Execution proceedings for enforcing an award were not proceedings
under the Act of 1996, but were proceedings under the Code. For said
purpose, he sought to draw support from the judgment of the Hon'ble
Supreme Court in Paramjeetsingh Patheja [supra]. He also submitted
that even an order passed under Section 9 of the Act of 1996 with
regard to grant of interim measures could be executed by having
regard to the provisions of Section 36 of the Code. He referred to the
scheme of execution of orders and decrees under the Code and
submitted that assignment of proceedings for execution and
enforcement of awards as decrees was permissible. He referred to the
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decisions in [1] M/s. I.T. I. Ltd. Vs. M/s. Siemens Public
Communications Network Ltd. [AIR 2002 SC 2308], [2] State of
Maharashtra & another Vs. Chandrakant Vasudeo Somshetty
since deceased by his heirs Shantabai & others [1991 (1) Mh.L.J.
392] and [3] State of Maharashtra & another Vs. Keru Baban
Avhad [2008 (6) Bom.C.R. 706] to demonstrate the effect of an
adjudication when it has the character as a decree.
Consideration :
11. At the outset, reference may be made to certain relevant
statutory provisions that have a bearing on the issue in hand. Section
2 (1) (e) of the Act of 1996 defines "Court" and the same reads thus:-
"2. Definitions.- (1) In this Part, unless the
context otherwise requires,-
(e) "Court" means -
(I) in the case of an arbitration other
than international commercial arbitration, the
principal Civil Court of original jurisdiction in a
district, and includes the High Court in
exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide the
questions forming the subject-matter of the
arbitration if the same had been the subject-
matter of a suit, but does not include any Civil
Court of a grade inferior to such principal Civil
Court, or any Court of Small Causes;
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(ii) in the case of international
commercial arbitration, the High Court in
exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide the
questions forming the subject-matter of the
arbitration if the same had been the subject-
matter of a suit, and in other cases, a High
Court having jurisdiction to hear appeals from
decrees of Courts subordinate to that High
Court."
Chapter-VIII of Part-I of the Act of 1996 relates to finality and
enforcement of arbitral awards. After an arbitral award becomes final
and binding, it can be enforced in the manner prescribed by Section
36. Section 36 (1) reads thus:-
"36. Enforcement. - (1) Where the time for
making an application to set aside the arbitral
award under Section 34 has expired, then,
subject to the provisions of sub-section (2),
such award shall be enforced in accordance
with the provisions of the Code of Civil
Procedure, 1908 (5 of 1908), in the same
manner as if it were a decree of the Court."
Section 42 of the Act 1996 specifies the jurisdiction under the Act of
1996 and stipulates that with respect to an arbitration agreement, if
any application under Part-I has been made in a Court, that Court
alone would have jurisdiction over the arbitral proceedings and all
subsequent applications arising out of that agreement and the arbitral
proceedings shall be made in that Court and in no other Court. Part-II
of the Act of 1996 deals with enforcement of certain foreign awards.
The conditions for enforcement of foreign awards are laid down in
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Section 48. Under Section 49 of the Act of 1996, if the Court is satisfied
that the foreign award is enforceable under Chapter-I of Part-II, the
Award shall be deemed to be a decree of that Court. Similarly, under
Chapter-II in Part-II pertaining to Geneva Convention Awards, Section
58 specifies the manner in which a foreign award would be enforceable
and it would be deemed to be a decree of the Court.
On perusal of the provisions of the Act of 1996, it is
apparent that the scheme with regard to enforcement of a domestic
award under Part-I is distinct from the manner in which a foreign
award can be enforced. While provisions of Section 36 of the Act of
1996 permit enforcement of a domestic award as per the provisions of
the Code as if the said award were a decree of the Court, Section 49
does not refer to such enforcement with the aid of the provisions of the
Code.
12. Section 2 (4) of the Code defines the expression "District" to
mean the local limits of the jurisdiction of a Principal Civil Court of
original jurisdiction [called "District Court"] and includes the local
limits of the ordinary original civil jurisdiction of a High Court. Section
2 (8) of the Code defines the expression "Judge" to mean Presiding
Officer of a Civil Court. Section 37 defines the expression "Court which
passed a decree." Section 37 reads thus:-
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"37. Definition of Court which passed a
decree.- The expression "Court which passed
a decree", or words to that effect, shall, in
relation to the execution of decrees, unless
there is anything repugnant in the subject or
context, be deemed to include,-
(a) where the decree to be executed has
been passed in the exercise of appellate
jurisdiction, the Court of first instance, and
(b) where the Court of first instance has
ceased to exist or to have jurisdiction to
execute it, the Court which, if the suit wherein
the decree was passed was instituted at the
time of making the application for the
execution of the decree, would have
jurisdiction to try such suit.
Explanation.- The Court of first instance
does not cease to have jurisdiction to execute
a decree merely on the ground that after the
institution of the suit wherein the decree was
passed or after the passing of the decree, any
area has been transferred from the jurisdiction
of that Court to the jurisdiction of any other
Court; but, in every such case, such other
Court shall also have jurisdiction to execute
the decree, if at the time of making the
application for execution of the decree it would
have jurisdiction to try the said suit."
Under Section 38 of the Code, a decree may be executed either by the
Court which passed it or by the Court to which it is sent for execution.
Section 39 of the Code deals with transfer of a decree and the same
reads thus:-
"39. Transfer of decree. - (1) The Court which
passed a decree may, on the application of the decree-
holder, send it for execution to another Court of
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competent jurisdiction,-
(a) if the person against whom the
decree is passed actually and voluntarily
resides or carries on business, or personally
works for gain, within the local limits of the
jurisdiction of such other Court, or
(b) if such person has not property within
the local limits of the jurisdiction of the Court
which passed the decree sufficient to satisfy
such decree and has property within the local
limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or
delivery of immovable property situate
outside the local limits of the jurisdiction of
the Court which passed it, or
(d) if the Court which passed the decree
considers for any other reason which it shall
record in writing, that the decree should be
executed by such other Court.
(2) The Court which passed a decree may of its
own motion send it for execution to any subordinate
Court of competent jurisdiction.
(3) For the purposes of this Section, a Court shall
be deemed to be a Court of competent jurisdiction if, at
the time of making the application for the transfer of
decree to it, such Court would have jurisdiction to try
the suit in which such decree was passed.
(4) Nothing in this Section shall be deemed to
authorise the Court which passed a decree to execute
such decree against any person or property outside the
local limits of its jurisdiction."
From the aforesaid, it can be seen that the term "District"
means the local limits of the jurisdiction of Principal Civil Court of
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original jurisdiction. It does not refer to a District Judge as a species,
but refers to the District Court as genus. Under Section 38 of the
Code, the decree could be executed by the Court passing it or the
Court to which it is sent for execution. Under Section 39 (1) of the
Code, the Court passing a decree can send it for execution to another
Court of competent jurisdiction on the application of the decree holder.
Under Sub-section (2), it can also on its own motion send the decree
for execution to any subordinate Court of competent jurisdiction.
Provisions of Order-XXI of the Code along with all other provisions
dealing with the execution of a decree are, thus, available as observed
by the Hon'ble Supreme Court in Punjab State Civil Supplies
Corporation Ltd. Vs. Atwal Rice & General Mills [ (2018) 1 Mh. L.J.
506].
13. Section 7 of the Act of 1869 specifies that the Principal Court
of original civil jurisdiction in the district within the meaning of the
Code is the District Court. Section 7 reads thus:-
"7. The District Court shall be the Principal Court of
original civil jurisdiction in the district, within the
meaning of the Code of Civil Procedure."
Under Section 16 of the Act of 1869, the District Judge can refer to any
Additional District Judge subordinate to him any original suits or
proceedings of a civil nature.
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14. It is to be borne in mind that an Award under Part-I of the
Act of 1996 becomes final after adjudication of proceedings under
Sections 34 and 37 thereof. It also becomes final after the time for
making an application for setting aside the Award under Section 34 of
the Act of 1996 has expired. Once that stage is reached, there would
be no question of going back to the provisions of the Act of 1996 and
the final award has to be executed in the same manner as a decree of
the Court in accordance with the provisions of the Code. Thus, the
Court dealing with execution proceedings is concerned with the
manner of execution of a decree and would be governed by the
provisions of the Code. Such Court could either be the Court which
passed the award or the Court to which it is sent for execution. The
Court to which the decree is sent for execution could either be a Court
of competent jurisdiction or any subordinate Court of competent
jurisdiction. The words ".....such award shall be enforced in accordance
with the provisions of the Code of Civil Procedure, 1908, in the same
manner as if it were a decree of the Court" as appearing in Section 36
(1) of the Act of 1996 have to be given their full effect. The manner in
which a decree can be executed has been stipulated by Sections 38
and 39 of the Code and hence resort to these provisions has to be
made in that regard. Or else the aforesaid words in Section 36 (1) of
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the Act of 1996 would be rendered otiose. In fact, such interpretation
would facilitate a more convenient manner of execution of a decree as
a result of the final award.
15. In Paramjeetsingh Patheja [supra], the provisions of Section
15 of the Arbitration Act, 1899 were considered in the light of
provisions of the Presidency Towns Insolvency Act, 1909. The words
"as if" as appearing in Section 15 of the 1899 Act were found to be in
pari materia with Section 36 of the Act of 1996. The observations in
paragraphs 28, 29 and the conclusion in paragraph 42 being relevant
are reproduced hereunder:-
"28. It is settled by decisions of this Court that
the words "as if" in fact show the distinction between
two things and such words are used for a limited
purpose. They further show that a legal fiction must be
limited to the purpose for which it was created.
29. Section 36 of the Arbitration & Conciliation
Act, 1996 which is in pari materia with Section 15 of
the 1899 Act, is set out hereinbelow:
"36. Enforcement .- Where the time for
making an application to set aside the
arbitral award under Section 34 has expired,
or such application having been made, it
has been refused, the award shall be
enforced under the Code of Civil Procedure,
1908 in the same manner as if it were a
decree of the Court."
(emphasis supplied)
In fact, Section 36 goes further than Section 15 of the
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1899 Act and makes it clear beyond doubt that
enforceability is only to be under the CPC. ......."
"42. The words "as if" demonstrate that award and
decree or order are two different things. The legal
fiction created is for the limited purpose of
enforcement as a decree. The fiction is not intended to
make it a decree for all purposes under all statutes,
whether State or Central."
It can, thus, be seen that enforceability of the award after it
becomes final can be done only under the Code and the legal fiction
created is only for the limited purpose of enforcement of the award as
a decree.
16. We are principally concerned with the expression "the
Principal Civil Court of Original Jurisdiction in a District" in Section 2 (1)
(e) (I) of the Act of 1996. Since the matter pertains to enforcement of
an Award as a decree of the Court in accordance with the provisions of
the Code, Section 2 (4) of the Code would, therefore, be relevant. On a
reading of Section 2 (4) of the Code along with Section 7 of the Act of
1869, it is clear that it is the District Court which the principal Civil
Court of original jurisdiction. The expression "Court" or for that
matter "District Court" cannot be co-related with the Principal District
Judge. The expressions used in Section 2 (1) (e) of the Act of 1996,
Section 2 (4) of the Code and Section 7 of the Act of 1869 clearly
indicate that the emphasis is on the District Court and not on the
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Principal District Judge. Even for the purposes of Section 34 of the Act,
1996, the Full Bench in Fountain Head Developers [supra] has referred
to the expression "District Court." Merely because Section 5 of the Act
of 1869 refers to a District Judge who shall preside over the District
Court, or, for that matter, provisions of Sections 16 and 17 of the Act of
1869 specifying the jurisdiction of Additional District Judges, that would
not mean that the expression "Court" under Section 2 (1) (e) of the Act
of 1996 is required to be given a narrow meaning so as to limit its
application only as regards the Principal District Judge in relation to
Section 36 of the Act of 1996. The emphasis is on the expression
"District Court" and the reason is obvious as "the Principal District
Judge" has not been contemplated as persona designata, at least in
the matter of execution of an Award as a decree. In this regard,
observations in paragraph 13 of the judgment of the Constitution
Bench in M/s. S.B.P. & Company Vs. M/s. Patel Engineering Ltd.
& another [AIR 2006 SC 450] may be referred to. It was observed
that persona designata, according to Black's Law Dictionary means a
person considered as an individual rather than as a member of a class.
He is a person selected to act in his private capacity and not in his
capacity as a Judge. A person so designated normally cannot delegate
his power to another.
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17. As held in Paramjeetsingh Patheja [supra], the legal fiction
created by the words "as if" in Section 36 (1) of the Act of 1996 is only
for the limited purpose of enforcement of an award as a decree.
There is yet another aspect of the matter that is required to
be taken into consideration. The use of the expression "Court" in
Section 36 (1) of the Act of 1996 has to be construed in the context in
which it appears. It may be noted that Section 2 (1) of the Act of 1996
which defines various expressions clarifies that those definitions are to
be attributed the necessary meanings unless the context otherwise
requires. If the expression "Court" were to be interpreted to mean the
Principal District Judge, execution of decrees would become
cumbersome and would also burden the Court of the Principal District
Judge in that matter. It is a recognized principle of interpretation that
the context in which a particular expression that has been defined in
the statute has been used cannot be ignored. Reference to the
following observations in Vanguard Fire & General Insurance Co.
Ltd, Madras Vs. Fraser & Ross [AIR 1960 SC 971] would be
apposite:-
"(6) .....................................................................
.................... It is well settled that all statutory
definitions or abbreviations must be read subject
to the qualification variously expressed in the
definition clauses which created them and it may
be that even where the definition is exhaustive
inasmuch as the word defined is said to mean a
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certain thing, it is possible for the word to have a
somewhat different meaning in different sections
of the Act depending upon the subject or the
context. That is why all definitions in statutes
generally begin with the qualifying words similar to
the words used in the present case, namely,
unless there is anything repugnant in the subject
or context. Therefore in finding out the meaning of
the word " insurer " in various Sections of the Act,
the meaning to be ordinarily given to it is that
given in the definition clause. But this is not
inflexible and there may be Sections in the Act
where the meaning may have to be departed from
on account of the subject or context in which the
word has been used and that will be giving effect
to the opening sentence in the definition Section,
namely, unless there is anything repugnant in the
subject or context. In view of this qualification, the
Court has not only to look at the words but also to
look at the context, the collocation and the object
of such words relating to such matter and interpret
the meaning intended to be conveyed by the use
of the words under the circumstances. ......"
Similarly, in Special Officer and Competent Authority, Urban
Land Ceilings, Hyderabad Vs. P. S. Rao [ (2000) 2 SCC 451], it has
been held that when the application of the definition to a term in a
provision containing that term makes it unworkable and otiose, it can
be said that the definition is not applicable to that provision because of
contrary context.
Hence, the context in which the expression "Court" is used
in Section 36 (1) of the Act of 1996 supports the conclusion that for the
purposes of enforcement of an award as a decree under the Code, the
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meaning of the expression "Court" as ascribed for the purposes other
than execution cannot be so applied while executing/enforcing a final
award as a decree. In that view of the matter, the provisions of Section
39 (1) of the Code would have to be construed independent of the
provisions of Section 2 (1) (e) (i) of the Act of 1996.
18. On a combined reading of the provisions of Sections 2 (1)
(e), 9, 34, 36 and 42 of the Act of 1996, it can be clearly gathered that
the "Court" as defined by Section 2 (1) (e) (i) is concerned with making
interim measures under Section 9 before or during arbitral proceedings
or at any time after making of the arbitral award but before it is
enforced in accordance with Section 36 of the Act of 1996. Once the
arbitral award is made under Section 31, the party aggrieved can apply
to the "Court" for setting aside the same. It is only after the award
becomes final that can it be enforced in accordance with the Code in
the same manner as if it were a decree of the "Court." As noted
above, applications contemplated by Section 42 do not relate to the
aspect of execution after the arbitral award has become final.
There is no provision under the Code restricting execution of
a decree by a particular Court. The scheme of Sections 37 to 39 of the
Code is, in fact, otherwise. The object is obvious and it is the smooth
and expeditious execution of the decree. This aspect of the matter
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stands fortified in the light of provisions of Sections 37 to 39 of the
Code. The award after becoming final has to be enforced in
accordance with the provisions of the Code in the same manner as if it
were a decree of the Court. Under the Code, a decree could be
executed by the Court which passed it or by the Court to which it is
sent for execution. The decree could also be transferred for the
purpose of execution to any other Court of competent jurisdiction or it
could be sent for execution to any subordinate Court of competent
jurisdiction. Construing the expression "Court" as only the Court of the
Principal District Judge for the purposes of execution of an Award as
decree under the Code would make the scheme of Sections 38 and 39
of the Code unworkable and, therefore, such interpretation cannot be
adopted.
19. In Sanjay Suryakant Mhaske & others Vs. Zilla
Parishad, Jalna [Writ Petition No. 2218 of 2015; decided at the
Aurangabad Bench on 11th June, 2015], the learned Single Judge was
considering the validity of the order passed by the Principal District
Judge rejecting the request made by the petitioners therein to transfer
execution proceedings from the Court of District Judge-2 to the Court
of Principal District Judge. After considering the provisions of the Act
of 1869, it was observed that as per that Act, the District Judge is a
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singular authority and all other Judges, Joint and/or Additional District
Judges are placed on a little different par from that of a District Judge.
It was, thus, held that in the light of provisions of Section 2 (1) (e) of
the Act of 1996, which was a central enactment, it was not open for
the Principal District Judge to exercise powers under the Act of 1869, a
State enactment and delegate or assign his powers to deal with
proceedings under the Act of 1996 to any other Judge. The order
passed by the Principal District Judge assigning the matters was set
aside and he was directed to dispose of the proceedings expeditiously.
In this judgment, the learned Single Judge in the light of
provisions of the Act of 1869 has held that the District Judge is a
singular authority and being the Principal Civil Court of original
jurisdiction in a district as contemplated by Section 2 (1) (e) of the Act
of 1996, delegation or assignment of his powers to any other Judge for
dealing with proceedings under the Act of 1996 was not permissible.
The judgment of the Division Bench in Akola Janta Commercial Co-
operative Bank Ltd. [supra] was, however, not brought to the notice of
learned Single Judge.
20. In Union of India Vs. Arun Kumar Deedwania [ 2017 (4)
Mh. L.J. 130], after the Award attained finality, execution proceedings
under Section 36 of the Act of 1996 were presented before the District
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Court. The judgment debtor filed an application that said proceedings
be dismissed for want of jurisdiction as the same were not filed before
the Principal District Judge who was the Principal Civil Court of original
jurisdiction. This application was rejected by the executing Court. This
order was challenged before the learned Single Judge. The judgments
of the Full Bench in Fountain Head Developers, Akola Janta Commercial
Co-operative Bank Ltd. and Sanjay Suryakant Mhaske [supra] were
considered by the learned Single Judge. It was observed that the ratio
laid down by the Full Bench in Fountain Head Developers [supra] could
not be read to mean that the District Judge or the District Court means
only a Court of Principal District Judge. Differing with the view taken
by the learned Single Judge in Sanjay Suryakant Mhaske [supra], it was
held by placing reliance on the judgment of the Division Bench in Akola
Janta Commercial Bank Ltd. [supra] that a decree holder was required
to apply for execution of an Award as a decree to the Court of District
Judge who may either execute it himself or send it for execution to
another Court including a subordinate Court of competent jurisdiction.
The challenge as raised to the impugned order therein was turned
down.
In the aforesaid decision, filing of execution proceedings
before the District Court was under challenge. The distinction between
the terms "Court" and "Judge" was noted and it was observed that the
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judgment of the Division Bench in Akola Janta Commercial Co-
operative Bank Ltd. [supra] had not been placed before the learned
Single Judge in Sanjay Suryakant Mhaske [supra].
21. In Associated Contractors [supra], the question as to which
Court would have jurisdiction to entertain and decide an application
under Section 34 of the Act of 1996 was referred to a Bench of three
learned Judges. In that context, the provisions of Section 2 (1) (e) of
the Act of 1996 were considered and it was held that the same is an
exhaustive definition marking out only the principal Civil Court of
original jurisdiction in a district or a High Court having original civil
jurisdiction in the State and no other Court as "Court" for the purpose
of Part-I of the Act, 1996. With regard to provisions of Section 42 of the
Act of 1996, it was held that the expression "with respect to an
arbitration agreement" made it clear that Section 42 would apply to all
applications made before or during arbitral proceedings or after award
is pronounced under Part-I of the Act of 1996. Section 42 was
applicable only to applications made under Part-I.
It is to be noted that the provisions of Section 42 refer to the
term "applications" under Part-I. It can be noticed that the term
"application" appears in Section 34 (2) of the Act of 1996 wherein for
the purposes of setting aside an arbitral award, a party can make an
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application. It is, thus, clear that the applications contemplated under
Section 42 after the award is pronounced would be an application filed
under Section 34 (2) for setting aside the Award. Reference in that
regard can also be made to the provisions of Section 36 (2) and (3) of
the Act of 1996 which provision contemplates an application for setting
aside the award. Section 36 (1) does not contemplate making of any
application as such, but it contemplates having the award enforced in
accordance with the provisions of the Code as if it were a decree of the
Court. This view finds support from the observations made in the
Associated Contractors [supra]. The Award after it becomes final
partakes the form of a decree and proceedings for its enforcement
cannot be treated to be an application after an Award is pronounced as
contemplated by Section 42 of the Act of 1996.
22. In Madhya Pradesh State Electricity Board & another
[supra], the Division Bench of the Madhya Pradesh High Court
considered the question as to whether the Additional District Judge has
inherent jurisdiction to hear an application under Section 34 of the Act
of 1996 in the light of provisions of Section 2 (1) (e) and Section 42 of
that Act, or, whether it is the District Judge alone who has jurisdiction
to deal with the lis. The Division Bench took into consideration the
provisions of Section 7 (2) of the Madhya Pradesh Civil Courts Act,
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1958 and found that in the State of Madhya Pradesh, the Additional
District Judge is equated with the Principal Civil Court of original
jurisdiction. It, therefore, held that the Additional District Judge met
the requirements as engrafted under Section 2 (1) (e) of the Act of
1996 and, therefore, the objection raised under Section 34 of the Act of
1996 could be dealt with by the Additional District Judge.
Section 7 (2) of the Madhya Pradesh Civil Courts Act, 1958
that was taken into consideration reads thus:-
"7. (1) ............
(2) An Additional Judge to the Court of a District
Judge, an Additional District Judge and an Additional
Judge to the Court of an Additional District Judge shall
discharge any of the functions of a District Judge,
including the functions of Principal Civil Court of original
jurisdiction which the District Judge may, by general or
special order, assign to him and in the discharge of such
functions he shall exercise the same powers as the
District Judge."
The aforesaid view is based on the provisions of Section 7
(2) of the Madhya Pradesh Civil Courts Act, 1958 and such pari materia
provisions cannot be found in the Act of 1869.
23. The Full Bench of the Calcutta High Court in West Bengal
Housing [supra] considered the question as to whether the Court of
learned Additional District Judge is a "Court" within the meaning of
Section 2 (1) (e) of the Act of 1996. It referred to the provisions of
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Section 8 (2) of the Bengal, Agra and Assam Civil Courts Act, 1887 as
well as Article 236 of the Constitution of India and observed that in
view thereof, there was no subordination as between an Additional
District Judge to exercise revisional powers under Section 115 of the
Code in respect of orders passed by the Court of an Additional District
Judge. The position of an Additional Judge was equated to that of the
District Judge of the district having identical powers as may be
conferred. It, thus, held that Court which can be excluded from the
purview of Section 2 (1) (e) of the Act of 1996 is the Civil Court of a
grade inferior to the principal Civil Court or any Court of Small Causes.
It concluded that as Additional District Judges are not statutorily
incompetent or inferior to the Principal District Judge and that they
exercise equal judicial powers, it held that the Additional District Judge
was a Court within the meaning of Section 2 (1) (e) of the Act of 1996.
The judgment of the Full Bench of this Court in Fountain Head
Developers [supra] was referred to and it was observed that the
provisions of the Act of 1869 as considered by the Full Bench of this
Court were not in pari materia with the provisions of the Bengal, Agra
and Assam Civil Courts Act, 1887.
It is, however, to be noted that while considering provisions
of Section 8 (2) of the Bengal, Agra and Assam Civil Courts Act, 1887,
learned Single Judge of the Allahabad High Court in I.T.I. Ltd. Allahabad
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[supra] held that proceedings under Section 34 of the Act of 1996
could not be entertained by the Additional District Judge and transfer
of such proceedings by the District Judge to the Additional District
Judge was not permissible. This decision of the learned Single Judge
has been affirmed by the Division Bench of the Allahabad High Court in
Northern Coalfields Ltd. Singrauli i [supra].
24. The decisions in Associated Contractors, Madhya Pradesh
State Electricity Board, West Bengal Housing, ITI Ltd., Allahabad and
Northern Coalfields Ltd. Singrauli [supra] are in relation to the
provisions of Section 34 of the Act of 1996. We are principally
concerned with enforcement of an award as contemplated by Section
36 of the Act of 1996. That stage is post Section 34 after the award
has become final. It has to be enforced according to the Code like a
decree of the Court. In the light of the provisions of Sections 38 and
39 of the Code which also permit execution of a decree even by a
Court other than the one which passed it, the ratio of these decisions
cannot be applied while considering the provisions of Section 36 of the
Act of 1996.
25. In Chandrakant Vasudeo Somshetty [supra], the Collector
determined the amount of compensation payable towards acquisition
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of land under the Maharashtra Industrial Development Act, 1961. The
claimants thereafter approached the District Court under Section 34
(1) of that Act for enhancement of compensation. The learned
Assistant Judge enhanced the amount of compensation. The State
Government challenged that adjudication by filing a Writ Petition under
Articles 226 and 227 of the Constitution of India. The question arose
as regards maintainability of the Writ Petition. Referring to the
provisions of Section 34 (1) of that Act, it was held that the award once
passed by the District Judge becomes a decree and is, thus, appealable
under Section 96 of the Code. It was further held that the expression
"decision of the Court" in Section 34 (2) of that Act could not be
restricted only to the principal Civil Court of original jurisdiction but
extended to the decision of the Court according to the hierarchy of
Courts. It was, thus, held that an appeal under Section 96 of the Code
was maintainable and the Writ Petition was not tenable. This decision
has been followed in Keru Baban Avhad [supra]. Similarly, in P. S.
Sathappan [supra], it was held that the finality clause in a statute
unless attached to an order passed in appeal would not take away the
right of appeal expressly provided.
These decisions recognize the right of appeal according to
the hierarchy of Courts.
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Conclusion :
26. In the light of aforesaid discussion, we find that after an
award attains finality and the stage as contemplated by provisions of
Section 34 of the Act of 1996 has been crossed, the final arbitral award
under Part-I of the Act of 1996 has to be enforced in accordance with
the provisions of the Code in the same manner as if it were a decree of
the Court. The legal fiction under Section 36 is only for the limited
purpose of enforcement of an award as a decree. At that stage, the
provisions of Sections 38 and 39 of the Code would come into
operation. These provisions permit a decree to be executed either by
the Court which passed it [the Court as defined by Section 2 (1) (e) (i)
of the Act of 1996] or by the Court to which it is sent for execution.
The Court which passed the decree can also transfer it for execution to
any subordinate Court of competent jurisdiction. Proceedings for
execution of an arbitral award are beyond the purview of Section 42 of
the Act of 1996, inasmuch as such proceedings are not in the nature of
any application under Part-I of the Act of 1996. The view as taken by
the Division Bench in Akola Janta Commercial Co-operative Bank Ltd .
[supra] that a decree holder must apply for execution of an award to
the Court of District Judge who may thereafter execute the award as a
decree himself or send it for execution to another Court including a
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subordinate Court of competent jurisdiction commends itself and we
respectfully concur with the same. The modality prescribed therein
that all applications for execution of awards be first placed before the
District Judge who may then execute the same himself or send it to
subordinate Courts under Section 38 read with Section 39 (2) of the
Code is found appropriate in these circumstances.
27. The Full Bench in Fountain Head Developers [supra] was
dealing only with the provisions of Section 34 of the Act of 1996. It is a
stage prior to the enforcement of a domestic award and was, thus,
concerned with the aspect of the Principal Court of original jurisdiction
for the purposes of petition under Section 34 of the Act of 1996. It is
not the ratio of the decision of the Full Bench that the expression
"Principal Civil Court of original jurisdiction in a district" employed in
Section 2 (1) (e) (i) of the Act of 1996 means only the Court of Principal
District Judge. The Division Bench in Akola Janta Commercial Co-
operative Bank Ltd. [supra] was dealing with the question as regard
enforcement/execution of a domestic award under Section 36 of the
Act of 1996. It is while considering the manner of execution of such
award that it was held that the aid of the provisions of Sections 38 and
39 of the Code could be taken. The aid of Sections 38 and 39 of the
Code can be taken for the purposes of Section 36 and not Section 34 of
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the Act of 1996. Thus, the Full Bench as well as the Division Bench
were dealing with awards under Part-I of the Act, 1996. In Gemini Bay
Transcription Pvt. Ltd. [supra], the enforcement of the foreign award
under Part-II of the Act of 1996 was in issue. Section 49 of the Act of
1996 does not use the expression "as if it were a decree of the Court"
as found in Section 36. It merely deems the award to be a decree of
the Court that records satisfaction as contemplated by Section 48 of
the Act of 1996.
In our view, the question as answered by the Full Bench in
Fountain Head Developers [supra] was with regard to a petition under
Section 34 of the Act of 1996 and that by the Division Bench in Akola
Janta Commercial Co-operative Bank Ltd. [supra]- was with regard to
the provisions of Section 36 of the Act of 1996. The ratio of these
decisions was not of much assistance while considering the
enforcement of a foreign award under Section 49 of the Act of 1996.
We have also noted above that in the context in which the expression
"Court" has been used in Section 36 of the Act of 1996, the provisions
of Section 39 (1) of the Code have to be construed independent of the
provisions of Section 2 (1) (e) (i) of the Act of 1996. We are, therefore,
in respectful disagreement with the views expressed in the order of
Reference in Gemini Bay Transcription Pvt. Ltd. [supra] that a Court
subordinate to the Court of District Judge [here the Court of Principal
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District Judge] cannot be recognized as a Court of competent
jurisdiction for the purposes of enforcement of awards under the Act of
1996. The view taken by learned Single Judge in Arunkumar
Deedwania [supra] stands affirmed and the view taken in Sanjay
Suryakant Mhaske & others [supra] with respect stands overruled.
28. The aforesaid view taken by us is fortified by the recent
decision of the Hon'ble Supreme Court in Sundaram Finance Ltd.
Vs. Abdul Samad & another [Civil Appeal No. 1650/2018; decided
on 15th February, 2018, Coram : J. Chelameswar & Sanjay Kishan
Kaul, JJ.], wherein it has been held that while enforcing an award,
execution proceedings can be filed anywhere in the country where
such decree can be executed and there is no requirement for obtaining
a transfer of the decree from the Court which would have jurisdiction
over the arbitral proceedings. It has been further observed that
arbitral proceedings stand terminated in view of Section 32 of the Act
of 1996 on the making of the final award and provisions of Section 42
of the Act of 1996 do not have relevance at that stage.
29. As regards enforcement of foreign awards under Chapter-I in
Part-II of the Act of 1996, Section 49 of the Act of 1996 stipulates that
when a foreign award becomes enforceable, it is deemed to be a
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decree of that Court. The expression "that Court" would mean the
Court as defined by Section 2 (1) (e) (ii). It would, thus, mean the High
Court in exercise of its ordinary original civil jurisdiction having
jurisdiction to decide the questions forming the subject-matter of the
arbitration if it had been the subject-matter of a suit and in other
cases, a High Court having jurisdiction to hear appeals from decrees of
Courts subordinate to the High Court. Order-XLIX, Rule 3 of the Code
as applicable to this Court does not exclude the application of the
provisions of Order-XXI of the Code in the matter of execution of
decrees.
Thus, as regards enforcement of foreign awards under
Chapter-I in Part-II of the Act of 1996, same can be executed by the
Court as defined by Section 2 (1) (e) (ii) of the Act of 1996 with the aid
of the provisions of Sections 38, 39 and Order-XXI of the Code.
30. The Reference accordingly stands answered as follows:-
An Award made under Part-I of the Arbitration and
Conciliation Act, 1996 can be executed not only by the
Court as defined by Section 2 (1) (e) (i) but also by the
Court to which it is sent for execution under Sections 38
and 39 of the Code of Civil Procedure, 1908.
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The Writ Petitions may now be placed before the Division
Bench for adjudication on merits.
We place on record our appreciation for the efforts taken by
learned counsel who have addressed the Court while deciding the
Reference.
Judge Judge Judge
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|hedau|
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